House Republicans might have ditched a plan to gut the Office of Congressional Ethics. But the future of Congress’ only outside ethics review board is far from guaranteed.
The Office of Congressional Ethics, or OCE, has been under fire from both parties since it was created eight years ago. Now the House GOP majority is promising to revisit a potential overhaul before the end of this session, possibly as early as August.
Members have said little publicly about what such a review would entail beyond House Ethics Chairwoman Susan W. Brooks’s statement that she wanted a “bipartisan agreement on a path forward.” The Indiana Republican declined to comment for this story.
What is clear is that the public outcry over the Jan. 2 attempt to defang the office created a rare moment in the spotlight for the otherwise obscure agency.
Watchdog groups say that they hope the attention will force an open discussion of how well investigators are doing their jobs and what tools would make them work better. But many fear that the OCE’s death sentence has simply been postponed until public attention shifts.
“This notion that after this public embarrassment, the efforts to gut the office will go away is misguided,” said Meredith McGehee, an ethics advocate who testified at the congressional hearings that led to the creation of the office.
Critics, meanwhile, including members who have been the targets of OCE investigations, say they see an opportunity to rein in investigators who abused their authority, smeared reputations and ruined careers.
“What’s happened is that many, many of us members have faced frivolous inquiries by the OCE and a certain number, like me, have been smeared,” said Democratic former Rep. Alan Grayson of Florida, who was the subject of a highly publicized ethics investigation last year, dealing with a hedge fund he operated while he was in office.
Always on thin ice
The debate has changed little since the office was first created in 2008 by the House Democratic majority in response to a series of ethics scandals.
Members have resisted outside review since the first such office was proposed in 1951. Skeptical lawmakers argued that only their peers could fully understand the pressures and responsibilities of the job, and warned that an outside agency could be abused for political attacks.
Proponents of outside review, however, countered that ethics committees in the House and Senate are hamstrung by obvious conflicts of interest because they are run by members and managed by their staffs. Their investigations are shrouded in secrecy and often interminable. It took the Jack Abramoff lobbying scandal in 2006 for outside review to win out — at least in the House. The Senate rejected a proposal to create its own version of the office.
The powers eventually granted to the Office of Congressional Ethics were meant to be a compromise. The office conducts its own review, but its budget is controlled by the House, and the House must vote to continue its operation every time a new Congress convenes.
The office can’t issue subpoenas or impose official sanctions, but it can take anonymous tips, and its findings are publicly disclosed after it refers a review to the House.
The public disclosure has been a point of contention with some members, who say it smears their reputations before anyone has determined whether they did anything wrong. But ethics advocates say the transparency has been surprisingly effective.
“It forced the House Ethics Committee to do its job,” said Craig Holman, government affairs lobbyist for the liberal watchdog group Public Citizen. Holman helped draft the legislation that led to the creation of the OCE. In a 2014 report, he found that the office had dramatically increased House disciplinary actions.
Lawmakers have since made repeated attempts to curtail the office’s powers or cut its funding. Many of those efforts have been waged by the Congressional Black Caucus, whose members say they’ve been disproportionately targeted.
The office is “like a police force out of control,” Missouri Rep. William Lacy Clay told The Atlantic in 2012. Clay’s father William L. Clay Sr. was a founding member of the caucus.
Grayson called the OCE “heavily biased” in trying to make it appear as though a member has done something wrong. “They don’t just make mountains out of molehills, they make mountain chains out of anthills,” he said.
The allegations against Grayson were published in media outlets long before the OCE referred the investigation to the ethics committee and the full complaint was eventually released. The episode added to a series of unfavorable media reports about unrelated problems in his doomed Florida Senate campaign.
The latest salvo
The latest attack on the OCE came the day after New Year’s, when Virginia GOP Rep. Robert W. Goodlatte proposed an amendment to the House rules package that would place the office under the authority of the ethics committee.
The amendment would have also prohibited the OCE from releasing information or making public comments without approval from the Ethics Committee, and prevented it from taking anonymous tips. The proposal was approved by a vote of 119-74.
Groups on the opposite end of the spectrum responded with dismay and rallied a robust media response.
“Members were getting hammered in their offices,” said Daniel Schuman, policy director at the liberal group Demand Progress. “We could feel they were crumbling.”
By the next day, President-elect Donald Trump weighed in with a tweet admonishing Republican leadership for the move, and House Republicans reversed course.
Goodlatte, who has defended his amendment, declined to comment for this story.
Schuman said he worried that the next time the office is targeted it will be harder to rally the same kind of attention.
Some who have championed the office since the beginning say they would welcome an opportunity to revisit the debate.
“I’d like to have an open discussion with everyone who follows this process to ask them what they think needs to be tightened up,” said Massachusetts Democratic Rep. Michael Capuano, who chaired the committee that recommended the creation of the OCE.
Many proponents of outside ethics review describe the ideal model in legalistic terms, with investigators acting as prosecutors securing an indictment. Concerns about lawmakers’ confidentiality would be resolved, they say, because findings would only be revealed when the office had secured enough evidence to make a solid case.
“It doesn’t have to be public if they reach the decision not to indict,” said Dennis Thompson, a professor at the Harvard Kennedy School, who has long advocated independent ethics commissions in Congress.
Advocates like Thompson say the most meaningful change would be to finally grant the office subpoena power and to establish a similar review board in the Senate.
Others say it would be a mistake to model the process after criminal investigations.
“You end up making the board much stronger than it should be,” said Donald Wolfensberger, a longtime House staffer who is now a fellow at the Bipartisan Policy Center. “If you start strengthening it, down the road, people will say, ‘Why not just get rid of the Ethics Committee?’ That’s contrary to the constitution.”
Wolfensberger testified against creating the OCE but has since commended the office.
Ethics lawyers say the OCE should give members more information about preliminary investigations.
They say the House ethics rules — chiefly that members should not engage in conduct that brings discredit to the institution — are too broad and nebulous for non-members to enforce.
Members and their lawyers also complain about unauthorized leaks to the media and sloppy efforts to maintain confidentiality.
One lawyer, who spoke on condition of anonymity because he still represents clients before the office, said the staff is often too aggressive.
“If your only power is to ask nicely or to be an a——, they generally err on the a—— side,” he said.
He added that it can cost members hundreds of thousands of dollars to defend themselves, only to have to begin the process again if the case is referred to the Ethics Committee. For their efforts, they get a public report detailing the allegations against them that could derail their careers.
McGehee, now at the advocacy group Issue One, brushed aside such complaints. “The purpose of the OCE is not to be popular with the members but to provide a credible process,” she said.
Both sides said there are some revisions they could agree on.
“There are legitimate areas of reform that should be pursued,” said Bryson Morgan, a lawyer with Caplin & Drysdale and former investigative counsel with the OCE.
Observers on both sides agreed that the House should clarify and simplify its ethics rules. They also said many complaints about the process would be resolved if the office had more time to conduct investigations.
The OCE must finish a preliminary review in 30 days, and has 45 days after that to find substantial reason for a violation to have occurred or drop the case. In some cases, it can take another 14 days.
“It’s not enough time,” Morgan said. “It’s an unnecessary strain on everyone involved.”
The Goodlatte amendment proposed increasing each of the review periods to 60 days.
But considering the contentious history of the office, many were skeptical of change.
“The office needs to have certain powers, but I’m not seeing that the current House Republicans or even the Democrats are eager to give them those powers,” said Thompson, the Harvard professor. Indeed, the best way forward, he said, could be sticking with the status quo.